THE NEW JURISPRUDENCE OF THE NECESSARY AND PROPER …

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THE NEW JURISPRUDENCE OF THE NECESSARY AND PROPER CLAUSE

J. Randy Beck*

Several recent Supreme Court decisions evidence reinvigorated principles of federalism and an increased willingness to strike down legislation as beyond the power of Congress. In this article, Professor Beck considers this trend in light of the persistent debate surrounding the implied powers of Congress under the Necessary and Proper Clause. Because the Necessary and Proper Clause represents the outer boundary of congressional authority, consideration of this provision necessarily illuminates discussions of state sovereignty and reserved powers.

The article begins with an historical overview of the Framers' understanding of the Necessary and Proper Clause, leading up to the Supreme Court's decision in McCulloch v. Maryland. The Court's decision in McCulloch, through Chief Justice Marshall, laid the groundwork for our modern understanding of the clause. An historical account of the Necessary and Proper Clause demonstrates that the "propriety" limitation is best understood as requiring an appropriate relationship between congressional ends and means. The propriety requirement should not be understood to provide textual support for free-standing principles of federalism, such as state sovereign immunity or the prohibition against commandeering of state officials. Thus, the article concludes that the Court's reliance on the propriety limitation in Printz v. United States and Alden v. Maine was misplaced. These decisions must be justified, if at all, on the structural and historical arguments employed by the Court. At the same time, in two recent commerce-power decisions, United States v. Lopez and United States v. Morrison, the Court failed to invoke the Necessary and Proper Clause where the propriety limitation was exactly apposite, and supported the Court's analysis. Constitutional doctrine will benefit from this historical account of the Necessary and Proper

* Assistant Professor, University of Georgia School of Law. I appreciate the help of Peter A. Appel, Dan T. Coenen, Anne Proffitt Dupre, and Paul J. Heald, who commented on a draft of this article. Eleanor Mixon, Douglas T. Neumeister, and Matthew Goode provided excellent research assistance. My thanks also go to my colleagues for their compassion and patience, and to Christ for the grace to complete the project in the midst of difficult circumstances. I dedicate the article to my parents, Raymond W. and Lorraine Beck, both of whom passed away while the research was in progress.

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Clause, as it highlights the modern implications of Chief Justice Marshall's understanding of the judicially enforceable limitations on congressional power.

Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress.

--James Madison, 1791**

The Supreme Court has surprised constitutional scholars in recent terms with a renewed emphasis on defending the states against incursions by Congress.1 Three lines of cases reflect the revived interest in federalism that animates a majority of the current Court. First, the Court has rejected the government's invocation of the Commerce Clause as authority for federal legislation addressing noncommercial activities traditionally regulated by state governments.2 Second, the Court has invalidated congressional attempts to "commandeer" state officials by compelling state legislators to enact desired legislation3 or requiring state executives to implement a federal regulatory scheme.4 Third, the Court has broadly defined state sovereign immunity, shielding states against many claims asserted on the basis of purported congressional authorizations.5

This article evaluates these recent federalism rulings in light of the controversy over implied congressional powers that commenced prior to ratification of the Constitution. All three lines of decisions implicate the Necessary and Proper Clause, the concluding provision in Article I, section 8's enumeration of congressional powers.6 The text of the Constitu-

** 2 ANNALS OF CONG. 1898 (1791). Gales and Seaton published two versions of Volume 2 of the Debates and Proceedings in the Congress of the United States (cited here as Annals of Congress), each with different pagination. This article will cite to the version that includes the above quote from Madison at page 1898 of Volume 2.

1. See, e.g., Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2181 (1998) ("The constitutional law of federalism-based constraints on the federal government has risen phoenix-like from the ashes of the post-New Deal enthusiasm for the exercise of national power.").

2. Morrison v. United States, 529 U.S. 598 (2000); Lopez v. United States, 514 U.S. 549 (1995). Federalism issues also predominate in a partially overlapping line of cases restricting congressional power to regulate states pursuant to Section 5 of the Fourteenth Amendment. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); Morrison, 529 U.S. at 618?27; City of Boerne v. Flores, 521 U.S. 507 (1997). This article relates primarily to the Article I powers of Congress and addresses only briefly the Fourteenth Amendment case law. See infra note 299 and accompanying text.

3. See New York v. United States, 505 U.S. 144 (1992). 4. Printz v. United States, 521 U.S. 898 (1997). 5. See Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). 6. The Necessary and Proper Clause affords Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST. art. I, ? 8, cl. 18. This article seeks to contribute to a growing body of recent literature concerning the Necessary and Proper Clause. See, e.g., JOSEPH M. LYNCH, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT (1999); Randy E. Barnett, Necessary and Proper, 44 UCLA L. REV. 745 (1997); David E. Engdahl, The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking Power, 22 HARV. J.L. & PUB. POL'Y 107 (1998);

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tion does not expressly grant any of the legislative powers at issue in these cases: the power to regulate local gun possession or gendermotivated violence, the power to commandeer state legislators or executives, or the power to abrogate state sovereign immunity.7 As a result, under classical constitutional reasoning, Congress could exercise the authority advanced in each case only if it represented an implied power "necessary and proper" to carry into execution another power vested in the federal government.8 The Court's rejection of the asserted congressional powers in these cases therefore can be understood as a construction of the Necessary and Proper Clause, a construction made explicit in the commandeering and sovereign immunity contexts,9 but never articulated in the commerce power cases.10 The "necessary and proper" standard, in other words, provides a potential textual anchor for the Court's implied limitations on the implied powers of Congress.11

Considering the recent federalism rulings through the lens of the Necessary and Proper Clause helps to place the decisions in the broader

Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEX. L. REV. 795 (1996); Eugene Gressman, RFRA: A Comedy of Necessary and Proper Errors, 21 CARDOZO L. REV. 507 (1999); Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993).

7. See generally U.S. CONST. art. I, ? 8. 8. The traditional approach to assessing claims of congressional power has been to first ask whether the text of the Constitution expressly grants the power in question. If not, the analysis then proceeds to consideration of whether the asserted congressional power constitutes an implied power satisfying the requirements of the Necessary and Proper Clause. See, e.g., United States v. Harris, 106 U.S. 629, 636 (1882) ("Mr. Justice Story, in his Commentaries on the Constitution, says: `Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power and necessary to its execution. If it be, it may be exercised by Congress. If not, Congress cannot exercise it.'") (emphasis added) (quoting JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ? 1243 (1833)); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819) ("Among the enumerated powers, we do not find that of establishing a bank or creating a corporation."); id. at 406? 24 (concluding that Congress possessed implied power to incorporate a bank under the Necessary and Proper Clause); Alden, 527 U.S. at 739 ("The Federal Government . . . `can claim no powers which are not granted to it by the [C]onstitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.'") (quoting Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816)); United States v. Fisher, 6 U.S. (2 Cranch) 358, 379 (1805) ("Under what clause of the constitution is such a power given to congress? Is it under the general power to make all laws necessary and proper for carrying into execution the particular powers specified? If so, where is the necessity, or where is the propriety, of such a provision[,] and to the exercise of what other power, is it necessary?"); 29 ANNALS OF CONG. 1132 (1818) (recognizing in the Committee Report on internal improvements legislation that any power asserted by Congress must either be expressly given or necessary and proper to execution of an express power); St. George Tucker, Appendix 1 [hereinafter Tucker's Appendix] to 1 WILLIAM BLACKSTONE, COMMENTARIES 288 (St. George Tucker ed., 1803) [hereinafter BLACKSTONE'S COMMENTARIES]. 9. See Alden, 527 U.S. at 732?39; Printz, 521 U.S. at 923?24. 10. See infra notes 253?99 and accompanying text. 11. See Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions, 93 NW. U. L. REV. 819, 826?30 (1999) (suggesting the need for a textual basis for the Court's federalism decisions). Professor Rappaport seeks to ground the Court's federalism principles in the historical understanding of the term "State," which is used throughout the constitutional text. See id. at 821, 831?38.

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context of American constitutional history. In light of that history, this article contends that the Supreme Court's approach to the Necessary and Proper Clause in these cases has been precisely backwards. The Court neglected to mention the "necessary and proper" standard in contexts where it would support the Court's analysis, and instead relied upon it in contexts where it offered no assistance.

In the commerce-power decisions, Lopez and Morrison, the Court failed to invoke the Necessary and Proper Clause.12 This article will suggest that the omission was material. The best explanation for those decisions derives from the historical understanding of the restraints imposed by the Necessary and Proper Clause on implied congressional powers. On the other hand, when the Court did rely upon the "necessary and proper" standard, in Printz and Alden, it erroneously concluded that laws commandeering state officials or abrogating state sovereign immunity are not "proper" as that term is used in Article I, section 8.13 Careful analysis suggests that the propriety limitation should instead be understood to regulate the relationship between congressional means and constitutional ends, rather than as a repository for implied principles of federalism. The commandeering and sovereign immunity cases may be defensible on structural grounds, but the construction of the Necessary and Proper Clause offered by the Court provides a dubious basis for the decisions.

It should come as no surprise that the Necessary and Proper Clause lies at the center of debate over federalism. As a corollary to the Tenth Amendment, any expansion of federal authority diminishes the reserved powers of the states.14 Thus, the Court has often conceived its task in federalism cases as one of discerning "the constitutional line between federal and state power."15 Because the Necessary and Proper Clause delineates the outer boundary of congressional authority, interpretation of that provision also permits identification of reserved state powers.

Section I of this article highlights early discussions of the Necessary and Proper Clause, leading up to McCulloch v. Maryland16 and John Marshall's pseudonymous defense of that decision in his Friend to the Union and Friend of the Constitution essays.17 Two of the Constitution's

12. Morrison v. United States, 529 U.S. 598 (2000); Lopez v. United States, 514 U.S. 549 (1995). 13. Alden, 527 U.S. at 730?31; Printz, 521 U.S. at 923?25. 14. The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." U.S. CONST. amend. X. The amendment conceptualizes sovereign powers as something like a pie, so that carving out a larger slice for the federal government leaves less for division between the states and the people. 15. New York v. United States, 505 U.S. 144, 155 (1992). 16. 17 U.S. (4 Wheat.) 316 (1819). 17. John Marshall, A Friend to the Union Nos. 1?2 (1819) [hereinafter A Friend to the Union], in JOHN MARSHALL'S DEFENSE OF MCCULLOCH V. MARYLAND 78?105 (Gerald Gunther ed., 1969) [hereinafter JOHN MARSHALL'S DEFENSE]; John Marshall, A Friend of the Constitution Nos. 1?9 (1819) [hereinafter A Friend of the Constitution], in JOHN MARSHALL'S DEFENSE, supra, at 155?214.

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Framers played a leading role in this early debate over the meaning of the Necessary and Proper Clause. James Madison argued for a strict construction of the provision, while Alexander Hamilton advocated a broader recognition of implied congressional powers.18 The McCulloch opinion largely reiterated Hamilton's 1791 Secretary of the Treasury opinion defending the constitutionality of a congressionally chartered bank.19 But while Hamilton won the initial skirmish over the scope of implied congressional powers, the Hamiltonian position included important limitations that help to explain and illuminate the Court's modern federalism rulings.

Section II of the article addresses the Supreme Court's recent restrictions on congressional regulation of local conduct affecting interstate commerce. The power to regulate conduct that affects commerce does not appear in the text of the Commerce Clause, but instead constitutes an implied power within the scope of the Necessary and Proper Clause. The Supreme Court in Lopez and Morrison confined Congress in most circumstances to regulation of economic or commercial activities that substantially affect interstate commerce.20 One can explain this limitation as a particular application of Hamilton's principle that an implied congressional power must bear an "obvious relation" to an end encompassed within one of the enumerated grants of power.21 Using the language of McCulloch, regulation of local, noneconomic conduct is not a means "appropriate," "plainly adapted to" or "really calculated to effect" the end of controlling interstate commercial activity.22

These restrictions on the means-end relationship provide the Hamiltonian antidote to a particular concern articulated by Madison. In both congressional debate and private correspondence, Madison expressed the fear that Congress would accomplish an unlimited expansion of federal authority through regulation of activities remote from its enumerated powers.23 Chief Justice Marshall viewed McCulloch's restrictions on the means-end relationship as the mechanism for resolving this remoteness problem.24 While the Court in Lopez and Morrison shared Madi-

18. Cf. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 96?103 (14th ed. 2001). Professors Sullivan and Gunther characterize the debate as one between Thomas Jefferson and Alexander Hamilton. I focus on James Madison as the advocate for the strict constructionist view, in part because Madison's speech opposing Hamilton's bank bill preceded Jefferson's opinion on the issue. See infra notes 67?109 and accompanying text.

19. Opinion of Alexander Hamilton on the Constitutionality of a National Bank (Feb. 23, 1791) [hereinafter Hamilton Opinion], reprinted in LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED STATES 95?112 (M. St. Clair Clarke & D.A. Hall eds., Augustus M. Kelley 1967) (1832) [hereinafter BANK HISTORY].

20. United States v. Morrison, 529 U.S. 598, 617?18 (2000); United States v. Lopez, 514 U.S. 549, 567 (1995).

21. BANK HISTORY, supra note 19, at 99. 22. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 423 (1819). 23. See H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651, 658? 59 (1995); infra notes 78?79 and accompanying text. 24. See infra notes 186?218 and accompanying text.

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son's concern about regulation of activities remote from the enumerated powers of Congress, the Court neglected to mention the strong connection between its commercial activity principle and these means-end limitations from McCulloch.25

Section III considers the Supreme Court's anticommandeering and sovereign immunity decisions. In Printz v. United States and Alden v. Maine, the Court rejected the dissenting Justices' invocation of the Necessary and Proper Clause, holding that it is not "proper" for Congress to commandeer state officials or to abrogate state sovereign immunity.26 Some historical support exists for reading the term "proper" to require congressional respect for sovereign interests of the states.27 Nevertheless, in light of the historical materials, the propriety standard is better read to regulate the relationship between a particular legislative measure and the congressional power on which it rests. This article argues that McCulloch in fact interpreted the propriety requirement in this fashion, and that its most important restrictions on the means-end relationship derive from the term "proper," rather than the term "necessary." The propriety limitation therefore provides an insufficient basis for the Supreme Court's anticommandeering and sovereign immunity rules. Those rules must stand or fall on the validity of the structural reasoning employed by the Court, and can draw no textual support from the Necessary and Proper Clause.

I. MADISON, HAMILTON, AND THE NECESSARY AND PROPER CLAUSE

One can conceptualize the early debate over interpretation of the Necessary and Proper Clause as an extended dialogue initiated by two Framers, James Madison, and Alexander Hamilton. At its core, the debate arose from the tension between two fundamental goals of the constitutional scheme, goals to which both Madison and Hamilton subscribed. On the one hand, proponents of the Constitution sought to afford the federal government adequate powers to achieve its delegated ends.28 Many perceived the Articles of Confederation government as too frail to protect the shared interests of the people of the United States.29 At the same time, the Framers sought to confine the jurisdiction of the federal government in order to preserve state autonomy and individual liberty.

25. Morrison, 529 U.S. at 610?19; Lopez, 514 U.S. at 559?68. 26. Alden v. Maine, 527 U.S. 706, 733 (1999); Printz v. United States, 521 U.S. 898, 923?24 (1997). 27. See generally Lawson & Granger, supra note 6, at 298?308. But see infra notes 363?439 and accompanying text. 28. THE FEDERALIST NO. 16, at 102?03, 123, (Alexander Hamilton), NO. 37, at 233?34 (James Madison) (Jacob E. Cooke ed., 1961). 29. See, e.g., THE FEDERALIST NOS. 15, 23 (Alexander Hamilton).

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While the federal government was given important powers, those powers were to be enumerated and limited.30

These twin aims of establishing a more powerful national government and confining its powers to preserve state and individual autonomy31 created a dilemma in interpreting the Necessary and Proper Clause. That clause provides that Congress shall have power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."32

The Necessary and Proper Clause plainly affirmed that Congress possesses some powers not spelled out in the text of the Constitution. At the same time, the language employed failed to clarify the precise scope of those implied powers. Construing the clause too narrowly presented the risk that the government would experience the same feebleness that led the Framers to abandon the Articles of Confederation.33 But construing the clause too broadly raised the danger that the federal government would supplant state governments or stifle individual freedom.

As between the Scylla of ineffectual federal power and the Charybdis of excessive federal power, Madison steered toward Scylla. Favoring preservation of the role of the state governments, he labored to ensure a strict interpretation of the Necessary and Proper Clause that would keep the federal government within defined boundaries. Hamilton, on the other hand, navigated toward Charybdis. Recalling the ineffectiveness of the confederation government, he advocated a liberal interpretation of the Necessary and Proper Clause that would permit flexibility in responding to the needs of the Union.

This section of the article offers an overview of the dialogue begun by Madison and Hamilton, culminating with the Supreme Court's Hamiltonian decision in McCulloch v. Maryland and Chief Justice Marshall's

30. See U.S. CONST. art. I, ? 8; id. amend. X; THE FEDERALIST NO. 14, at 86 (James Madison), NO. 84, at 579?80 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

31. THE FEDERALIST NO. 37, at 233?37 (James Madison) (Jacob E. Cooke ed., 1961); see also H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable Federalism, 83 MINN. L. REV. 849, 851?52 (1999) ("[F]ederalism is not simply about protecting the states from national encroachment. It is also about empowering the national government to act where appropriate. After all, American federalism was invented as a means of creating a more effective (and necessarily more powerful) national government than existed under the Articles of Confederation.").

32. U.S. CONST. art. I, ? 8, cl. 18. 33. A primary flaw in the Articles of Confederation lay in its rejection of any notion of implied congressional powers. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406?07 (1819); THE FEDERALIST NO. 44, at 303?04 (James Madison) (Jacob E. Cooke ed., 1961). Article II of the Articles provided: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." ARTS. OF CONFED., art. II. A rule requiring all governmental powers, no matter how minor or obvious, to be expressly stated at the outset places an impossible weight on the foresight and patience of those framing the plan of government. The Tenth Amendment incorporates a principle of reserved powers, comparable to Article II, but does not limit Congress to only those powers "expressly delegated." See U.S. CONST. amend. X.

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subsequent defense of the decision in pseudonymous newspaper essays. Sections II and III then consider the Court's recent federalism decisions in light of the themes sounded in this early debate.

A. Madison and Hamilton in the Campaign for Ratification

Though they would later part ways over interpretation of the Necessary and Proper Clause, Madison and Hamilton began their public discussion of the provision as joint authors of essays supporting ratification of the Constitution. In the Federalist, under the common pen name "Publius," they labored together to overcome objections raised by the Constitution's opponents.34 Their divisions over the Necessary and Proper Clause did not surface during ratification because the discussions of the clause took place at a high level of generality. Neither of them addressed concrete applications of the provision, except for the purpose of dismissing hypothetical legislative usurpations that were extreme and improbable given the assumptions of the day.35

The Anti-Federalists found in the ambiguity of the "Sweeping Clause," as they called it,36 fertile ground for criticizing the proposed plan of government.37 George Mason's widely circulated critique of the Constitution objected to this power in the following terms:

Under their own Construction of the general Clause at the End of the enumerated Powers, the Congress may grant Monopolies in Trade & Commerce, constitute new Crimes, inflict unusual & severe Punishments, and extend their Power as far as they shall think proper; so that the State Legislatures have no Security for the Powers now presumed to remain to them; or the People for their Rights.38

Other Anti-Federalists echoed Mason's concern that the Necessary and Proper Clause would permit intrusion on the reserved powers of the states.39 Some even contended that the Sweeping Clause would permit

34. THE FEDERALIST NO. 33 (Alexander Hamilton), NO. 44 (James Madison). 35. See THE FEDERALIST NO. 33, at 206?07 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also infra notes 47?48 and accompanying text. 36. See LYNCH, supra note 6, at 4, 24; Lawson & Granger, supra note 6, at 270?71, n.10. 37. Letters from the Federal Farmer, reprinted in 2 THE COMPLETE ANTI-FEDERALIST ? 2.8.29, at 237 (Herbert J. Stering ed., 1981) [hereinafter COMPLETE ANTI-FEDERALIST] (noting the impossibility of knowing "the extent and number of the laws which may be deemed necessary and proper"). 38. 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 350 (1983) [hereinafter DOCUMENTARY HISTORY OF THE RATIFICATION]; 14 id. at 151. Mason had made the same critique during the Constitutional Convention. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 640 (Max Farrand ed., 1937) (complaining that under this provision, "the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights"); see also 4 id. at 56 (complaining of "indefinite powers" granted to the national government). Eldridge Gerry also objected to the Necessary and Proper Clause at the Constitutional Convention, arguing that this provision, along with other features of the Constitution, would render the rights of citizens insecure. 13 DOCUMENTARY HISTORY OF THE RATIFICATION, supra, at 199. 39. Essays of An Old Whig, reprinted in 3 COMPLETE ANTI-FEDERALIST, supra note 37, ? 3.3.12, at 24 ("Under such a clause as this can any thing be said to be reserved and kept back from Con-

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